Apr 11, 2018

The defence rests – on an abysmal understanding of terrorism

Look, I get it. I know why defence lawyers try to get their clients’ cases thrown out on technicalities or by feigning outrage that anyone could harbour any suspicion that the individual they represent could possibly in a million years be guilty of the offences alleged by the Crown.  That is, after all, why we have defence lawyers.  And, our prosecutorial system rests on the very solid grounds that we are all presumed innocent  until the judge and/or jury agree that the Crown has demonstrated otherwise to a satisfactory level of proof and beyond a reasonable doubt.  The presumption of innocence is a cornerstone of our legal system.

But you have to admit that the latest attempt by a Canadian lawyer to get the court to drop terrorism charges against his client is so bad that if it were not so funny it would be tragic (actually maybe it is both in this case).  The lawyer for Ayanle Hassan Ali, accused of stabbing several soldiers at a Canadian Armed Forces recruiting centre in Toronto on March 14, 2016 an attack during which he allegedly said “Allah told me to do this; Allah told me to come here and kill people”, told the court that Mr. Ali  should not be charged with terrorism because:

a) he is not mentally fit (au contraire: an assessment in July 2016 found he was fit to stand trial), and

b) he does not belong to a ‘terrorist group’ and Canada has no laws to try a ‘lone actor’ on terrorism charges.

One of these claims is iffy at best and the other is just plain stupid. Can you guess which is which?

As for a), I am not a psychiatrist and therefore am 100% unqualified to comment on Mr. Ali’s mental state.  Two things stand out for me though.  First, as already noted, he was deemed mentally competent so I do not see what the defence is basing its claim on.  Secondly, the link between mental illness and violent extremism is widely over-exaggerated and misunderstood.  Mr. Ali may indeed suffer from schizophrenia but that fact is not the same as saying he did what he did BECAUSE he is schizophrenic.  Furthermore, most terrorists are not mentally ill.   I suspect the defence is throwing up a Hail Mary pass on this one.

As for b), this claim is patently stupid and speaks to a fundamental and shameful ignorance of terrorism, especially of the Islamist extremist variety.  The defence says that Canadian law does not allow for an individual to be accused of terrorism unless s/he is part of a terrorist organisation and that law does not apply to ‘one-man terrorist groups’.  Really?  Here is what the Canadian Criminal Code says in section 83.01 (I will cut and paste as it is quite long):

  • an act or omission that is committed in or outside Canada and that, if committed in Canada…in whole or in part for a political, religious or ideological purpose, objective or cause, and in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security, or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act, whether the public or the person, government or organization is inside or outside Canada.

Do you see the phrase “and must be on the behalf of a terrorist group”?  Coz I sure don’t.  Yes, there is a reference to ‘terrorist group’ in the definitions section of 83.01 but it is tangential to the offence, not an integral part of it. Given that just about every terrorist we have tried in Canada did NOT belong to an obvious terrorist group I’d say the jurisprudence is pretty strong here.  So, the defence is not on solid ground here.

I do not know what weight the court will give to the mental illness issue and whether more assessments are required. I do know, however, that the defence often seems to treat the psychological card as if it were a ‘get out of jail free’ Monopoly one.

The other contention that belonging to a terrorist group is a necessary condition to lay a terrorism charge should be tossed out immediately and the defence should be reprimanded for wasting the court’s time.  Terrorism is terrorism whether you belong to Al Qaeda, Islamic State, the LTTE, the IRA, Tom’s Terrorist Trio or Evelyn the extremist.  Pretending otherwise is ridiculous.

  • Martyn

    Another thought provoking post.
    I would make these comments.
    Charging people with “terrorism” – or some permutation of that – is bound to muddy the water. There are over 250 definitions of terrorism. Why not frame the law in terms of “Ideologically motivated violence”? It does not matter whether one belongs to a group or not. But, parliamentary drafters in their wisdom have done what they have. Time to redraft the law.
    As for the insanity defence (Allah told me to do it) – all salafi jihadis think Allah has told them to do it – via Mohammed, according to their favourite quote: “And fight them until there is no fitnah and [until] the religion, all of it, is for Allah” (S.8.39). Are we then going ot say all salafi-jihadi terrorists are suffering command hallucinations?
    One can be crazy and also a terrorist. The two are not mutually exclusive. Crazy (or whatever the technical term is) speaks to being responsible for or the author of one’s actions and knowing the quality of them and not suffering some defect of mind that caused the person to act; terrorism – or as I prefer, ideologically motivated violence – speaks to the motivation for the action – rather than the reason for having the motivation (i.e. the cat told me to do it, or some such). However, as mentioned, given salafi-jihadis believe that Allah, via Mohammed, has commanded them to fight, and this is not delusional in the same way that say, one’s pet goldfish is telling one to act, I think that from a commonsense point of view, such folks are not crazy.
    There is a great discussion to be had here.

    • Phil Gurski

      Agreed Martyn! I’d like to contact you so we can chat – if that is ok.